Saturday, February 28, 2015

Plight of Undertrials in Indian Jails

Krishnagiri man spends
12 years in jail without trial, HC orders his release

CHENNAI: T Ravi, 47, has spent more
than 25% of his life in jail as an undertrial - no trial, no evidence and no
conviction. Arrested in 2002 in a murder case in Krishnagiri district, he has
spent last 12 years behind the bars as police dragged the case citing
difficulty in getting witnesses to testify and the trial court denied him bail
saying he doesn't have a permanent address.

Terming Ravi's long incarceration as unfortunate, the Madras high court has now
ordered his immediate release on bail. The court also directed the Tamil Nadu
State Legal Services Authority (TNSLSA) to take a survey of people languishing
in jail for long periods and extend them necessary legal assistance.

"Keeping a person in jail as an undertrial for 12 years without evidence,
trial and conviction is not fair. It is unreasonable. It is inequitable. It
indicates that there are cracks in our criminal justice system," Justice P
Devadas said last week. "Merely because a person has become an accused, he
cannot be subjected to cellular servitude. He cannot be stated to have lost his
human rights. He cannot be treated as an animal," the judge said,
directing the Krishnagiri sessions court to complete trial in the case within
two months.Ravi was arrested in 2002 by Bagaloor
police in Krishnagiri district in connection with a case of murder for gain.
Recently, he moved the sessions court for bail. The court refused to release
him after police justified the delay saying there was some difficulty in
producing witnesses, who hailed from West Bengal, Assam and Rajasthan. Also,
Ravi did not have any permanent residence, the court said.

Ravi approached the HC, saying though he was prepared to face the trial there
was no sign of its commencement. Also, his co-accused had been released on bail
while he alone had been denied the relief by the Krishnagiri court, he said.

Justice Devadas flayed the subordinate court saying the judge failed to take
note of the fact that Ravi had been in jail as an undertrial for 12 years, and
that non-production of witnesses by the prosecution was not his fault. Pointing
out that Ravi had a family, voter identity card and ration card, the judge said
he could not be held responsible for the delay in the trial.

Keeping a person in jail for about a dozen years without even informing him
whether he was convicted or acquitted is inhuman and violation of his human
rights, Justice Devadas said, adding: "Right to speedy trial and speedy
justice is a component of Article 21 of the Constitution. But, in this case,
there is a delay of 12 years in conducting the trial. It is mainly because of
the non-production of witnesses by the prosecution. Ravi cannot be blamed for
this. There is complete infraction of Ravi's fundamental rights."

Editorial
: Safety of Jail Inmates Responsibility of Judges

The presiding judge
of the case who issues arrest warrant against a person , who
rejects the bail plea of the accused and the judge who
remands accused to police custody / judicial custody is fully responsible
for safety , human rights of the prison / jail inmates. Use of 3rd degree
torture is rampant in jails and in all such cases ,
respective presiding judges must be made to pay compensation
from their pockets and judges must be charged for AIDING &
ABETTING THE MURDER ATTEMPT on prisoner by jail /
police authorities. Are the JUDGES & POLICE above Law ?

Human rights
group Amnesty International today criticised the Narendra Modi-led government,
saying under the new regime India has witnessed a rise in communal violence and
its Land Acquisition Ordinance has put thousands of Indians at "risk"
of forcible eviction.In its Annual
Report 2015, released here, Amnesty highlighted poll-related violence in the lead
up to the May 2014 General Elections, communal clashes and failure of
consultation on corporate projects as key concerns."National
elections in May saw a government led by the Bharatiya Janata Party come to
power with a landslide victory. Prime Minister Narendra Modi, who campaigned on
promises of good governance and development for all, made commitments to
improve access to financial services and sanitation for people living in
poverty."However,
the government took steps towards reducing requirements to consult with
communities affected by corporate-led projects," Amnesty said in its
report.The report
highlighted that, "the authorities continued to violate people's rights to
privacy and freedom of expression. There was a rise in communal violence in
Uttar Pradesh and some other states and corruption, caste-based discrimination
and caste violence remained pervasive."In reference
to communal violence, it noted that, "A string of communally charged
incidents in Uttar Pradesh prior to elections led to an increase in tensions
between Hindu and Muslim communities...Politicians were accused of and in some
cases criminally charged with making provocative speeches.""...In
December, Hindu groups were accused of forcibly converting several Muslims and
Christians to Hinduism," the report said.The rights
body also went on to single out the Land Acquisition Ordinance for criticism as
it described the move as a new "risk" to thousands of Indians."In
December, the government passed a temporary law which removed requirements
related to seeking the consent of affected communities and assessing social
impact when state authorities acquired land for certain projects," it
said."Thousands
of people remained at risk of being forcibly evicted from their homes and lands
for large infrastructure projects. Particularly vulnerable were Adivasi
communities living near new and expanding mines and dams," it added .While the
group recognised "progressive legal reform", it was critical of
India's "overburdened and under-funded criminal justice system".Amnesty
pointed out two court orders as important "gains" for India in 2014,
including a Bhopal court's decision in November to demand that its criminal
summons against the Dow Chemical Company to be re-issued and a "landmark
judgement" by the Supreme Court in April granting legal recognition to
transgender people.

INDIA: Regressive changes to land acquisition law must not be
enacted

Indian lawmakers
should reject any amendments to the land acquisition law that do away with
crucial human rights safeguards and could lead
to forced evictions, Amnesty International India said today.

The government is
planning to soon introduce in the lower house of Parliament the Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement (Amendment) Bill 2015. The Bill, if passed, will replace an
executive ordinance that made changes to key provisions on consent and social
impact assessment related to land acquisition in December 2014.

“The land
acquisition ordinance extended compensation and rehabilitation benefits to
communities affected by certain kinds of development projects,” said Aruna
Chandrasekhar, Business and Human Rights Researcher at Amnesty International
India. “But it also dismantled safeguards that are central to the land
acquisition law, undermining the rights of communities to participation and
consultation.”

The land
acquisition law, which came into force in January 2014, stated that the consent
of 70 per cent of families is mandatory where land is sought to be acquired for
public-private partnership projects, and 80 per cent for private projects. The
executive ordinance removed these requirements for a range of projects,
including those relating to defence and national security, rural
infrastructure, affordable housing, industrial corridors and infrastructure.

The ordinance
also exempted these projects from having to go through a social impact
assessment – a study by independent experts to map a project’s impact on
people’s lands and livelihoods, and its economic, social and cultural
consequences, in consultation with affected communities.

“It is surprising
that the government does not seem to want to learn about the social impact of a
project before approving land acquisition for it,” said Aruna Chandrasekhar.

“Without a social
impact assessment, rehabilitation and compensation measures are likely to be
flawed and inadequate. Exempting projects from these assessments can in effect
deprive communities of the opportunity to be consulted on decisions that have
far-reaching social and economic impacts on them.”

“Parliamentarians
must instead insist on a law that requires private and state-owned companies to
carry out human rights due diligence.”

The land
acquisition law initially did not apply to acquisition carried out for projects
under 13 central Acts, including for coal mining by the state. The ordinance
extended the law’s provisions on compensation, rehabilitation and resettlement
to these Acts.

However, the
requirements of consent and social impact assessment still do not apply to
acquisition carried out under these 13 Acts. A provision requiring the consent
of communities in ‘scheduled areas’ - Adivasi regions identified under the
Constitution as deserving special protection - also does not apply.

“Under
international law, the government has a duty to meaningfully consult with
Adivasis, who are among India’s most vulnerable people, and seek their consent
on projects that affect them,” said Aruna Chandrasekhar.

“The government
must ensure that development projects do not end up jeopardizing human rights.
Instead of rushing to amend a law that has barely been implemented, Parliament
must address existing gaps, and consult affected communities and other
stakeholders to ensure that development is both holistic and sustainable. ”

Background

The Right to Fair
Compensation and Transparency in Land Acquisition, Rehabilitation and
Resettlement Act, in its original form, fell short of international standards
on human rights impact assessment; free, prior and informed consent;
consultation and rehabilitation. The Act came into force on 1 January 2014, replacing
the Land Acquisition Act of 1894.

In recent months,
the government has passed a series of executive orders which undermine
communities’ rights, including: removing the requirement of public hearings
with affected communities for coal mines of certain sizes seeking to expand
their production; making certain categories of projects exempt from requiring
environment clearances and consulting communities; and diluting requirements of
gram sabha consent where certain forest land is sought to be used for industrial
purposes.

International
human rights law and standards, including the International Covenant on
Economic, Social and Cultural Rights; the International Covenant on the
Elimination of All Forms of Racial Discrimination; and the UN Declaration on the
Rights of Indigenous Peoples mandate the seeking of the free, prior and
informed consent of indigenous communities in decisions that affect them.

According
to the UN Guiding Principles on Business and Human Rights, companies should
have in place a human rights due diligence process to identify, prevent and
mitigate their impacts on human rights. States can impose a requirement for
human rights due diligence where business operations pose a significant risk to
human rights.

Two-thirds of prison inmates in India are undertrials

Over 3,000 of the 2.8 lakh have been behind bars for more than
five years

Two
of every three persons incarcerated in India have not yet been convicted of any
crime, and Muslims are over-represented among such undertrials, new official
data show. Despite
repeated Supreme Court orders on the rights of undertrials, the jails are
filling ever faster with them, shows Prisons Statistics for 2013 released by
the National Crime Records Bureau. The number of convicts grew by 1.4 per cent
from 2012 to 2013, but the number of undertrials shot up by 9.3 per cent during
the period. Men
make up 96 per cent of all prison inmates. Nearly 2,000 children of women
inmates live behind bars, 80 per cent of those women being undertrials. A
sharp increase in the number of undertrials charged with crimes against women
contributes to the rise in the number of all undertrials. The number of those
incarcerated on charges of rape rose by over 30 per cent from 2012 to 2013, and
the number facing charges of molestation grew by over 50 per cent. The number
of men convicted of rape rose dramatically too, by 16 per cent — the biggest
increase among major sections of the Indian Penal Code. Undertrials
are younger than convicts — nearly half are under the age of 30 and over 70 per
cent have not completed school. Muslims form 21 per cent of them. On the other
hand, 17 per cent of those convicted are Muslims. “These
numbers definitely point to a failure of the delivery of justice, but it also
appears that the system is unequally unjust,” said Harsh Mander, Director of
the Centre for Equity Studies, which works on issues of access to justice in
prisons. “The disproportionate presence of members of the Scheduled Castes and
Scheduled Tribes and Muslims among undertrials points not simply to a technical
breakdown but also to the increased vulnerability of these groups, and probably
bias,” Mr. Mander told The Hindu. Among the 2.8
lakh undertrials, over 3,000 have been behind bars for over five years. Between
them, Uttar Pradesh and Bihar are home to 1,500 of those undertrials. Most
undertrials — 60 per cent of them — have, however, been behind bars for less
than six months. While
most States have a little over twice as many undertrials as convicts, Bihar has
a staggering six times as many. The
NCRB numbers also provide the only insight available into the number of people
on death row; at the end of 2013, 382 persons had been sentenced to death and
were awaiting either legal relief or the execution of sentence. "Excessive
pre-trial detention violates undertrial prisoners’ rights to liberty and fair
trial, and adversely impacts their life and livelihood," Divya Iyer,
Research Manager at Amnesty International India, said, adding that the new
numbers were a "serious concern". While a lack of effective
management of information relating to prisoners, the absence of functional and
effective undertrial review committees, lack of adequate legal aid, and delays
in court productions of undertrials contributed to the problem, the authorities
must as a first step identify and release all those prisoners who are eligible
for release under law, including those who have already been in prison for over
half the term they would have faced if convicted, Ms. Iyer said.

Top of Form

Bottom of Form

Laws dealing with
undertrials in India are flawed

By Bibek Debroy

Reports
have appeared about a review of undertrial prisoners. Compared to 1,27,000
convicts, there are 2,54,000 undertrial prisoners. Prisons were never meant to
cater to undertrials. Unfortunately, overcrowding of prisons is primarily
because of undertrials. To use a cliche, those who should be in jail aren’t in
jail. Those who shouldn’t be in jail are in jail.

Undertrials
aren’t those in police custody. (That isn’t supposed to be for more than 15
days.) They are those in judicial custody either because courts have denied
them bail because these are non-bailable offences, or because despite these
being bailable offences, prisoners haven’t been able to furnish bail. The
problem is that many poor people are unable to furnish bail.

Accordingly,
we had an amendment to the Criminal Procedure Code (CrPC) in 2005, Section
436A. Shorn of legal jargon, this excludes offences for which capital
punishment is possible. For everything else, if detention has been for more
than half the maximum period of imprisonment prescribed for that offence, the
prisoner will be released on a personal bond, with or without sureties.
(However, after hearing the public prosecutor, the court has the discretion to
deviate from this.) Also, no prisoner will be detained for more than the
maximum period of imprisonment prescribed for the offence.

So,
these recent reports are about the 2005 amendment being implemented. In 2005,
there were supposed to be review committees in all districts. Nothing happened.
For every district, there will now be a review panel with the district judge,
district magistrate and superintendent of police.

They
will meet once every three months and status reports will be submitted. The problem
isn’t even across states. For instance, if you take a snapshot of undertrials
across states, among large states, there are large numbers of undertrials in
Bihar, Jharkhand, Madhya Pradesh, Maharashtra, Uttar Pradesh and West Bengal.

Petty Offences, Long Terms

There
is a stock and a flow. The number of undertrials is large at any one point in
time. For the country as a whole, the number of undertrials detained for more
than five years is lower than 2,000. With a cut-off of three years, the figure
is lower than 8,000.

Although
we don’t have a break-up according to offences, this suggests that there are
two kinds of undertrials: those accused of really serious crimes (where capital
punishment is possible) and petty offences. Unfairness is more about petty
offences, where there are instances of prisoners having been undertrials for
longer than the maximum period of imprisonment prescribed.

The
problem is speeding up justice delivery in criminal cases. But there is a
narrower problem with bail laws. Here is CrPC’s Section 441 (1), “Before any
person is released on bail or released on his own bond, a bond for such sum of
money as the police officer or court, as the case may be, thinks sufficient
shall be executed by such person, and, when he is released on bail, by one or
more sufficient sureties conditioned that such person shall attend at the time
and place mentioned in the bond, and shall continue so to attend until
otherwise directed by the police officer or court, as the case may be.”

Asurety
is a person who takes responsibility for another person’s undertaking some
action. This reminds me of Section 109 of the CrPC where people suspected of
committing cognisable offences can be ordered to execute bonds, with or without
sureties. In 1996, Surjit Singh Barnala wrote Story of an Escape, in which
there is an interesting anecdote.

Bail Can Buy Happiness

As
former Punjab chief minister, Barnala got tired of all the security. In 1994,
slipping away from guards, he disguised himself and wandered around incognito and
was picked up for questioning by police in Uttar Pradesh. Since he had no
identity papers on him, the cops wanted two respectable people (sureties) who
would vouch for his identity. Barnala could only think of Mulayam Singh Yadav.
Read the (generally trashed) book for what happened next. The point is the
discretion Section 441 grants to police officers and the court.

There
is a presumption that only those with access to financial resources and
‘sureties’ will be entitled to bail. Who can phrase it better than Justice VR
Krishna Iyer? In a 1978 judgment, he wrote, “Affluents do not befriend
indigents.” Does one really have to insist on monetary amounts and sureties,
regardless of the offence? Or is a personal bond good enough?

Bond of Hope

There
is a 1996 Supreme Court judgment (Common Cause case) that says precisely this:
the accused must be released on a personal bond. However, a subsequent judgment
inserted a caveat to exclude cases where delays are caused by ‘wrongdoing’ by
the accused. That Section 436A also has a rather worrying explanation, “In
computing the period of detention under this section for granting bail, the
period of detention passed due to delay in proceeding caused by the accused
shall be excluded.”

Finally,
do we have satisfactory databases about prisoners in various jails? We know
about central jails. But what about district jails and subjails? That’s where
the bulk of the problem lies.